Weber v. Lockman

• Decision Date: 19 November 1902
• Docket Number: 12,168
• Citation: 92 N.W. 591,66 Neb. 469
• Parties: ALOIS WEBER, SENIOR, v. CHARLES H. LOCKMAN ET AL
• Court: Nebraska Supreme Court

92 N.W. 591

66 Neb. 469

ALOIS WEBER, SENIOR, v. CHARLES H. LOCKMAN ET AL

No. 12,168

Supreme Court of Nebraska

November 19, 1902

ERROR from the district court for Cedar county. Action against master and servant for personal trespass. Tried below before GRAVES, J. Judgment for plaintiff, and defendant Alois Weber Sr., brings error. Affirmed.

AFFIRMED.

James C. Robinson, for plaintiff in error:

If the act is done while the servant is at liberty from his service and pursuing his own ends exclusively, there can be no question of the master's freedom from all responsibility even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master. Shearman & Redfield, Neligence [5th ed.], sec. 147; Schouler, Domestic Relations [4th ed.], sec. 491, and cases cited; Davis v. Houghtellin, 33 Neb. 582, and authorities cited; Western Union Telegraph Co. v. Mullins, 44 Neb. 732; Little M. R. Co. v. Wetmore, 19 Ohio St. 110; Morier v. St. Paul, M. & M. R. Co., 31 Minn. 351; Johanson v. Pioneer Fuel Co., 72 Minn. 405, 75 N.W. 719; Keating v. Michigan C. R. Co., 97 Mich. 154; Reaume v. Newcomb, 82 N.W. [Mich.], 806; Schulwitz v. Delta Lumber Co., 85 N.W. [Mich.], 1075; Golden v. Newbrand, 52 Iowa 59; Dolan v. Hubinger, 109 Iowa 408, 80 N.W. 514; Winkler v. Fisher, 70 N.W. [Wis.], 477.

R. J. Millard and Cassius H. Whitney, for defendant in error Charles H. Lockman.

Benjamin M. Weed, for defendant in error Alois Weber, Jr.

AMES, C. DUFFIE and ALBERT, CC., concur.

OPINION

AMES, C.

This is a proceeding in error to review a judgment in an action for damages for personal injuries. The facts out of which the cause of action arose are substantially undisputed, and are these: The plaintiff in error, Alois Weber, Sr., was living upon and cultivating a farm upon which there was a herd of cattle belonging to him. As a part of the business thus being carried on, it was necessary, or desired, to drive the cattle to a place some five or six miles from home, and put them in a pasture there. There were employed upon the farm, besides the plaintiff in error, his son Alois, Jr., and a hired servant named Schweimer. At the breakfast table on a Sunday morning, it was proposed to drive the animals to pasture on that day, so as to avoid interruption of work during the coming week, but the elder Weber objected to this course solely on account of the character of the day. There was no further discussion of the matter until about two o'clock in the afternoon, when Alois, Jr., and Schweimer mounted some horses, and turning the cattle into the public highway, drove them to the designated place of destination. Weber, Sr., was at or shortly before this time in his house, asleep, and did not know of the conduct of the young men until after they had departed from the premises with the cattle. After the animals had been turned into the pasture, Alois, Jr., abandoned the direct road home, and made a detour of about a mile for the purpose of seeing and visiting with some young men of his acquaintance. Owing to the delay thus occasioned, he did not resume his journey homeward until nightfall, when he did so accompanied by another young man, also on horseback. When he was within a mile and a half or two miles from home, and apparently upon the direct road thither, he had been overtaken by darkness, and both horses having become unmanageable from fright or some other cause, ran rapidly along the road and down a hillside near the residence of the defendant in error, whom they encountered in the highway, and whom the horse ridden by Alois ran over, causing the injuries on account of which the judgment was recovered. The court left it to the jury to say--First, whether the accident was attributable solely to the negligence of Alois; and second, whether, if so, such negligence should be imputed to the plaintiff in error as a master in the course of whose service it occurred. The first question was one peculiarly within the province of the jury and will not be further considered. The correct answer to the second question is, we think, not difficult. The purpose of the elder Weber to have the cattle driven to the pasture as a part of the business he was carrying on, is not in dispute. The only objection he made was as to the time when they should be driven, but he does not appear to have positively forbidden it to be done on the day mentioned. Even if he had done so, he would not thus have deprived the act of its character of having been done in his service. Disobedience in this regard would not have been different,...